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sburch79 writes "A brief filed in the Viacom v. Google case asserts that the DMCA Safe Harbor provisions were never meant to apply to sites like YouTube. It also goes on to say the if safe harbor were given to these sites, it would put too big a burden on networks to police their own material."

looks like another case of "can't have your cake and eat it too". They just want money to magically fly itself into their bank accounts. Time for them to start working for it. So, you want to abuse the law, and you want the entire world to waste their time looking out for your "rights"? silly people.

Well, the logical way would be to phrase it like that, but the clauses have been reversed since the 1800s, and has been pretty commonly accepted in it's current form. If you realize that "have" in this case means "to posses" and not "to eat" it still works either way.

Content providers have learned the hard way that the laws they've bought don't amount to much.

Sure, copyright infringement is illegal. Who is out there arresting and locking up infringers? Nobody, really. Only the most egregious offenders ever get busted.

Still, you can go after someone civilly, right? Too bad it's shitty PR to wipe out the life savings of single mothers because their kids downloaded a few songs. And you don't get much money out of it, either.

They'll keep fighting against the inevitable, but a self-policing Internet just isn't going to happen, and copyright infringement isn't going to stop. It is technically unfeasible and not the least bit cost effective.

Yeah, but a non-self policing internet that's simple (enough) to police is easy to legislate. We're only one big "cyber attack" or large terrorist attack which was mediated by the internet away from the MIRROR-SUC (Mandatory Internet Registration, Restriction, and Operation Requirements for Software, Users, and Computers) Act of 20xx, which will require all internet users and all connected nodes to have registered unique identity credentials, and all

That sounds utterly unenforceable and would pretty much bankrupt any company that depends on networked computers for any part of their business. Hell, it would be worse on companies than private users!

I'd contest that the most egregious offenders ever get busted. Look at most of the RIAA suits, and they're going after people who download 10-100 songs, not filling up terabyte drives with music. I have acquaintances who download compulsively as "archivists" who could never listen to the entirity of what they've infringed. It's not that the bigger infringers are any harder to bust, it's that if the RIAA goes after these major downloaders, the overall damages would be absolutely absurd, and people would realize how ludicrous the claims of damages truly are. For example, 1 TB drive = 1024^2 Mb = 1,048,576 Mb. Assuming an Mp3 is 3 Mb in size, you could fit 349,925 Mp3s (ignoring drive constraints and spare change). At $80,000 a pop from the Capital v. Thomas jury award (though later reduced by the judge, the jury found this to be the appropriate damages for infringement), you're talking $27,994,000,000. Twenty-eight billion dollars for a single drive. Fill it with eBooks instead just for fun and you're talking around $84 billion. No single human could do that much damage on the internet, not even Mitnick. So if the RIAA went after the big seeders, their whole scheme would unravel. If you want to pirate, pirate so big you become "too big to fail!"

More like "unpaid security forces" - they don't want the ISPs to enforce the law, they want the ISPs to do their work for them.

I love that companies that make their money from slicing rights as thinly as possible so they can sell the same thing over and over, feel it's too much of a burden to enforce the copyrights. Strikes me as "cost of doing business".

I think it's more like, "sorry, you don't have some inherent right to have special laws for yourselves." I think the problem is that these companies don't think copyright protections should apply to authors and individuals and tech companies. In the minds of the "content industry", all copyright protections are devised to uniquely benefit them and provide them with a guarantee of profitable business dealings. I'm sure Viacom will only really be happy if they manage to get copyright law rewritten to say, "If you enjoy any piece of video, you must pay Viacom. Viacom is permitted to use material which you produce however they want."

That's one way of putting it to be sure. I would say something more along the lines of "The law applies to everyone equally or to no one at all." Law is not meant to create to sustain specific and particular businesses. It is meant to create a fair and level field in which people can work, play and compete with one another. (Yes, I know that's not how it actually works, just stating that's how it's SUPPOSED to work.)

I think it is plenty hilarious that a plaintiff actually has the nerve to argue in favor

It's a shame you posted AC. Now nobody will see your comment unless the mods help out.

Everything that Big Media does is to get eyeballs for their advertisers. Thus, the advertisers are the customers and the eyeballs are the product.

Now look at the copyright battles. The core issue is of control -- who can use the video/song/etc to attract consumers for their customers. Right now, it's YouTube that is getting the page hits. Big Media doesn't like that one bit, so now they're putting up a fight.

It's not a copyright violation that they're worrying about, but theft of their actual product: viewers.

So, what happens when the consumer and customer become the same person? That's the model Hulu and others have talked about. It's such a radical shift that it's no wonder Big Media has no clue how to handle that business model.

Google is more than willing to share its product (viewers' attention) with copyright owners. All the copyright owner has to do is sign up for Content ID, submit samples of works that it controls, and set the Content ID settings to "monetize".

> This, of course, puts them into a bind: Without enough viewers, you can't justify the advertising> costs for specific slots so you either charge less for a specific time slot in order to attract> advertisers or you lose them. If you lose them, you're not bringing in the revenue

Of course, anyone with cable or equivalent should know already.... the upside is, that for any given time slot, there isn't all that much competition. Nearly every time I hit "guide" and look for a show to relax and watch f

No, viewers are not really customers. Basically, they're the product. Much like fish are a product in a fish farm. Sure, you have to feed them and raise them, but essentially it's the fish you're selling to someone making fish sticks, it's not like you're selling fish food to the fish. If the fish should notice that there's a hole in your farming tanks and they can escape to the ocean where they can get food without your aid, you're out of a product.

Btw - viewers are very rarely "customers". Certainly for TV programming they are not, the advertisers are.

And yet, my cable bill arrives every month...

The cable bill is the cable company selling the channels to you.

The examples are a bit simplistic - any good business these days makes money on both sides of the equation. They sell your eyeballs to advertisers, and sell the rights to your eyeballs to the cable companies.

It's double dipping plain and simple. Here in Australia, when cable TV first came out, there were actually next to no advertisements on it. I mean like really, nothing. Over time, they started to slip in some minor advertising between shows. Then one day, they stuck in a few ads in the middle of tv shows. Then some more. The way it currently is, short of a few exceptions such as the movie only channels, where there is advertising between movies, just about every channel has a large amount of advertising for

Oh not only that, think about how much major $$$ they could make by hawking extras in those commercials-Box sets, hats, T-shirts, limited edition signed by a star merchandise, etc. It would be a gold mine! Instead they end up screwing themselves out of major profits. For those that doubt it would work, let me use myself as an example-

In the late 90s I hear all these critics and folks in the forums raving about this new horror show starring some soap actress and the guy from those Taster's Choice commercials

In addition: most of the stuff I've seen on Youtube should be covered under Fair Use, especially parodies.

Many people have an exaggerated impression of what that means. Parody is not comedy in general, everything that gives you a cheap laugh on YouTube is not fair use. The reason parody is given as an example of fair use is because parody can be a form of commentary on the original work, which would be covered by the first amendment. If it's just a prop to make fun of something else, it shouldn't be given any more protection than using the clip to create a drama or thriller or action clip. Also, a lof people th

On the whole, if I look at most clips on YouTube I find they are according to the four points of fair use: [1-3 in favor of copyright owner]

But are things like Cryptomnesia: Vertigo [youtube.com] like most clips? WMG content ID muted the audio on this one for a couple weeks, despite what I believed to be obvious commentary on the works in question.

Agreed. Hear that sound? That's the sound of the world's tiniest violin playing the saddest song in the world.

Sorry, Hollywood, but YouTube is precisely the kind of site that safe harbor exemptions are for. It is an ISP whose material is provided exclusively by its users. What, you thought that somehow a site shouldn't count because it is getting too big for you to bully? Waaaah. Cry me a freaking river.

Especially as they were forced to make the 'safe harbor' provision in the DMCA to be allowed some of the more egregious stuff.

'Safe harbor' may seem to be fair and sane to most people, but it's important to note it's not particularly supposed to be fair, it's actually intended to be rather lax. It's a compromise reached to allow tougher laws against people who knowingly facilitate the distribution of copyrighted material.

And now they're bitching and whining about it, complaining it is doing exactly what it was intended to do...not require companies to police their customers.

So, of course, now they want to use the harsher laws that they only have because of 'safe harbor' to go after YouTube.

We might all whine about companies issuing DMCA takedown notices, but at least those are under the threat of perjury and are actual filed legal documents. Too many people have forgotten about the universe before that, when companies would call other companies and have some non-lawyer hint heavily about lawsuits and have them remove content that they had no legal ability to object to or sue over, but the host company didn't want to risk it.

I am, of course, in favor of actually filing some perjury charges here and there over obviously bogus takedown notices, but even without that, the system is still better, both for hosting companies and end users. So of course content providers object to it.

I am on YouTube's side, but I've never heard of a web site being called an internet service provider (ISP). I've always heard it used the type of company that sells you a connection to the internet. For most people, Google doesn't actually connect you to the internet in that manner.

Part of copyright is that one should be watching out for their own material, and have any documentation to back it up. While many people do so as a courtesy, it is generally not the responsibility of somebody else to make sure that material they are not responsible for does not wind up in places it doesn't belong.

I think it's also worth noting that copyright isn't like trademark. You don't have to enforce it to maintain it. So... if there's little commercial value in yanking Hitler parodies off You Tube, there's no reason to continue to do so.

it is generally not the responsibility of somebody else to make sure that material they are not responsible for does not wind up in places it doesn't belong.

Actually, this is a great idea. Let's make every YouTube user responsible for policing themselves. If they upload infringing material, they can issue themselves a takedown request, respond to themselves with a fair use claim, and then sue themselves for copyright infringement. Look how streamlined this makes the process: The publishers won't have to lift a finger! They should be paying me for coming up with such great ideas.

Actually, this is a great idea. Let's make every YouTube user responsible for policing themselves. If they upload infringing material, they can issue themselves a takedown request, respond to themselves with a fair use claim, and then sue themselves for copyright infringement. Look how streamlined this makes the process: The publishers won't have to lift a finger! They should be paying me for coming up with such great ideas.

I suggest you patent the process just in case any enterprising **AA lawyers try to co-opt your brilliant idea.That way, you can force the **AA to sue themselves for patent infringement and pay you a licensing fee on the patent so that they can drop the lawsuit against themselves.

"Hello, cubs. I'm "Don't Sue People" Panda, with an important message for you! Lawsuits damage our society. I know it's tempting to make money, but just remember: that money has to come from somewhere. And usually, it ends up hurting a lot of innocent people."

Pity the **AA missed that episode, never mind, I'm sure it's on YouTube.

This isn't even about copyright infringement. Hell, much of the copyrighted content on YouTube was uploaded by the copyright owner on purpose, to get people to watch it. As for the other stuff that was uploaded without authorization, as TFA says, Google has gone above and beyond by scanning through their archives with sophisticated software that automatically sends notices to the copyright holder, asking them if they want to A) take it down or B) make money off of it.

Google has gone out of their way to get along with content owners. All Viacom is trying to do is eliminate their competititon. People visit sites like YouTube often in lieu of watching television or Hula, or whatever. YouTube is the most popular video site on the Web, and Viacom would rather have people watch their stuff than go to YouTube.

I would go further and say that google has gone along with copyright holders SO much and so excessively that if youtube had any sizable competition it would die in a matter of months.

Audio being removed from tons of videos (such as the background music of an arcade game in japan my gf filmed). Accounts deleted, a bass player (MarloweDK) giving free online lessons had over a million views on many videos, banned because some of the music he taught was copyrighted. All of the 'not available in your country'

Part of copyright is that one should be watching out for their own material, and have any documentation to back it up.

Right. The thing that people *need* to understand is that displaying copyrighted material is not necessarily illegal, even if you're not the copyright holder. I swear, really it's not. In fact, most stuff on the Internet is copyrighted and owned by someone, and a lot of stuff is hosted in various places without any violation. For example, I believe the terms of use for Slashdot are such that I remain holder of the copyright of this post, yet Slashdot will continue to display this post on their site.

In your case, by posting, one merely grants copyright to Slashdot - but you don't lose it. All it is, by definition, is "right to copy". Now if the publishers would figure out that it is not a big stick to wield (which will just piss people off), we might suss this whole debacle.

Yeah, I think that the Slashdot situation is that you agree to allow Slashdot the right to republish your writings when you sign up for an account... though I don't know if there's anything particular when you post as an AC. Most sites have some page somewhere where they say, "By posting on our site, you agree that we have [such and such rights] over whatever you post." You're not giving Slashdot the copyright, you're effectively giving Slashdot a license to publish and distribute. Of course, there's rar

The brief basically spends most of the time rehashing the DMCA and the Safe Harbor intentions. While it mentions that the Safe Harbor protects those providers who are meeting the obligations of the DMCA, it fails to credit Youtube with doing enough. Youtube does comply when notified; however, the brief faults Youtube with relying too much on being notified. The other thing to note is the tone of brief. It all but accuses Youtube of encouraging massive copyright infringement and doing nothing about it.

Hahahahahahahahaha *gasp* I just read the hahahahahahah TFA hahahhahaha *gasp* So there's this lawyer right hahahahahahah, and he argues hahahahahahahhahahahahahah *gasp* that the law should be enforced according to the spirit of the law, instead of the exact word! hahahahahahahhahahaha!

Yeah, that certainly seems to be the case, and I've never heard such an alternate reading being seriously considered previously, so it would seem like a matter of fairly established case law that *should* be fairly difficult to cast aside at this point.

And for their complaint about it being too great a burden... Well, they certainly aren't obliged to give a damn about it. They choose to. If you want to bring a civil action against somebody

Re-posting because I forgot to log in and I didn't want to say this as AC:

The record industry and the film industry are two sides of the same coin - hell, in many cases they're different arms of the same company. What we see now with the MPAA is an almost exact action-replay of what we've seen with the RIAA over the last 10 years.

The first thing the record industry did was ignore the existence of the Internet, MP3s and other such things. Then came Napster and suddenly ignoring it wasn't an option.

The second thing the record industry did was sue Napster into the ground and attempt to force ISPs to block file sharing (they're still doing this to a certain extent, though I'm not sure how much is being driven by the MPAA and how much is being driven by the RIAA these days).

Next up, we've got "refuse to license songs for distribution over the Internet, put draconian DRM on CDs which doesn't really achieve the desired aim and just hacks off your customers". Erm... anyone see any parallels with DVDs and BluRay?

After that, we had "License songs on condition that DRM is used to 'protect' them". iTunes used to apply DRM, and there didn't used to be any such thing as a company selling plain unencumbered MP3s unless you count dubious Russian site allofmp3.com. I would say we're somewhere between this and the "refuse to license for Internet distribution" stage for movies and TV shows.

Today we have "License songs without the DRM conditions", and several companies are selling plain unencumbered MP3s quite legitimately without having to set up shop in some part of the world where copyright is considered broadly optional. Despite all the screams of how MP3s would kill the music industry, I know of no major record label which has gone out of business, and alas it seems we still have squeaky-clean teenage Britney Fucking Spears (seriously, "Fucking"'s her middle name) clones churning out dross. I don't think we've entirely moved on from the record-exec induced hysteria, but for the most part it seems that we can at least have a sensible adult discussion as to how the Internet can be used to help a band, which is more than we could 10 years ago.

My prediction is that in 5 years time, the movie industry will have gone in much the same direction, and in 10 years time most of us will have forgotten all of this. Until the next thing that forces them to re-think their business comes up.

Remember that its the media company lobbyists that largely wrote the DMCA and pushed for its adoption: I would expect that the safe harbor provision was intended merely as a sop to alleviate the potential fears of other powerful business interests (e.g., Google) that the DMCA would be expensive for them, so that there wouldn't be moneyed interests with a strong of a financial interest i

More importantly, if the value of the copyrighted material isn't high enough to justify the expense of making sure it is not on Youtube, what's the problem? Or to put it another way, if Viacom's product isn't worth enough to justify ensuring that content infringing on it isn't on Youtube, maybe Viacom should consider creating higher value content.

it would put too big a burden on networks to police their own material.

awww.. poor fucking babies. So instead its MY responsibility as an ISP to police YOUR fucking material? Who the fuck at your network do I send my invoices for my labor to do your fucking job for you? Either police your shit or dont prosecute for infringement. Anywhere else in society the financially harmed has to take civil suit action against those that do the harm for a tort claim

Thinking they should have responsibility and removing actual personal responsibility by legislating personal responsibility are two separate and incompatible issues. You called for one in one post, and the other in another post. So which is it, do you want personal responsibility, or do you want to remove all personal responsibility by having the government legislate actions such that legal responsibility removes personal responsibility?

Yeah, it's so onerous to have the power to send automated C&D letters that carry full legal weight if ignored, but carry no practical threat of legal reprisal if machine error caused them to be sent to an innocent party's ISP.

"The problem that Google has is that almost every video that is uploaded is protected by copyright."

Amazing thing. You create a system that is an opt-out system for copyright, rather than an opt-in system, everything is indeed protected by copyright unless that right is relinquished. Even home videos! Not everything that is copyrighted has any commercial value. And, a lot of the stuff that the holder feels has commercial value, doesn't.

And it wouldn't be too big a burden on YouTube (or pretty much any other site) to police their user uploaded content? Let's say I upload a video. There's a copyright on that video so should YouTube prevent it from being uploaded? Well, what about if I was the one who made it? Should they allow it now? What if I made it for a studio who now owns the copyright? Deny it? What if the (enlightened) studio is working with me to promote their products by putting the video online? Allow it?

The summary and the article linked within are (purposely) doing a poor job of representing the actual position of the attorneys. I wasn't comfortable thinking they were that blatantly stupid and greed, and so dug a little deeper:

- The DMCA Section 512(c) safe harbor does not provide a defense to inducement liability [cornell.edu];and

- Section 512(c)(1)(B)'s language denying the safe harbor where a site derives "a financial benefit directly attributable to the infringing activity, in a case in which the serviceprovider has the right and ability to control such activity," should be interpreted consistent with the "right and ability to control" standard from common law vicarious liability.

The second [scribd.com], from the free market-oriented Washington [wlf.org]Legal Foundation, focuses on the legislative history and purpose of the DMCA's safe harbors, arguing that the law mandates a "shared responsibility" among copyright owners and online service providers in addressing infringement, and does not relieve sites like YouTube of all obligations to fight illegal use of others' works, especially while profiting from it.

So their argument goes a little deeper than 'waaaaaaaa' as some of my fellow slashdotters have summarized it.

Against the actual argument, however, I think YouTube's most logical response would be to stop policing the content themselves at all. The position here seems to be that YouTube is a facilitator by not completely blocking copywritten content. A fair response would be for YouTube to step out of that role and give the content providers the power to do this directly. Vis-a-vi, allow the big media companies to sue those providers directly. By the way, if you haven't noticed, the providers are the individuals making content and posting it to YouTube... you know, the end users.

Did you read the brief filed by the Washington Legal Foundation? That is the brief the article is writing about and the article accurately represents the position. They don't believe that the Safe Harbor provisions were meant for sites like YouTube.

The argument that "it would put too big a burden on networks to police their own material" is not at all the primary one in the amicus curae being discussed [scribd.com] - go ahead, read it for yourself (yes, yes, I'm new here etc).

Rather, they argue that DMCA is supposed to protect providers only in cases of "innocent infringement", i.e. when they're not aware that material they host is infringing. They furthermore claim that, in YouTube's case, Google does know, or reasonably suspects (which is "good enough"), that most of material being posted onto the site is infringing, even if they do not know that about every individual video being posted - they refer to it as "willful blindness". They furthermore claim that Google, while knowning this, essentially ignores that, and "abuses" DMCA safe harbor by only performing post-infrongement take-down by request, while profiting from ads displayed while playing all those infringing videos before they're taken down.

I believe this is a reference to those claims -made by YouTube owners and Google managers in private during the take-over, which we've seen in previous court documents - with stats for overall count of infringing material (which was way over 50%).

Now, whether this is a valid legal argument or not, I do not know. They do reference DMCA there, as well as some relevant court cases, which they claim support this point of view, but, of course, we'd need a legal expert to clarify that.

Look forward to it being passed someday. The Selective Enforcement Act will allow companies to enforce their legal claims against some entities as they choose, but won't be penalized for not enforcing it against others. For example, they might say that YouTube is costing them revenue and issue take down notices for all of their content (and related and derivative works), but they might turn around and allow a site (we'll call it MediaLackey) to have them remain up. Of course the second site won't be offi

Can we play this game some more?
Why does it matter what they want? They can want to be emperor of the world.
What is it with people thinking the law should be what they want it to be instead of what it is?

How about we just revoke copyright for anything transmitted through an FCC licensed RF signal?
For public good anything transmitted/broadcast by an FCC license cannot be copyrighted, but must be public domainI like my way better.

Maybe youtube should try to police the material for a few days as a demonstration of how ridiculous such an attempt would be.

What human beings think when they see this:

1. Request is made for YouTube to police everything.2. YouTube grudgingly complies.3. Obvious difficulties are revealed.4. YouTube cannot keep up.5. People see and realize the problems, reconsider.

What executives think when they see this:

1. Request is made for YouTube to police everything.2. YouTube grudgingly complies.3. Someone else is doing the work for them; delegation successful, YouTube is now entirely responsible, this is no longer the concern of those requesting it.4. Any future difficulties in this are obviously failures on YouTube's fault. Report as such.5. Keep going until YouTube is dead; this is called "beating the competition". Declare victory.

What I suspect executives have actually thought about these things, over time:

1. Youtube is distributing video content on this Internet thing, but it's mostly stupid user generate stuff and doesn't seem like a big deal.
2. Oh, wait, there's some of our content up on this YouTube thing. We'd better make a big stink and get them to take it down.
3. Requesting takedowns is too much work. We should try to force Youtube to do it for us. After all, we have a lot of leverage here. I'm a big important movie ex

Not a good idea. They know very well it can't be done - otherwise they'd just do it. What they want instead, is someone to blame. You see if they try it and fail, then they're screwed. If Youtube tries it and fails, then the content industry is free to sue them out of existence (which is what they really want anyways).